Court File and Parties

COURT FILE NO.: CR-21-50000469-0000 DATE: 20240531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING

- and-

NAHOM FESHAYE MUSSIE

Counsel: Brigid McCallum, for the Crown Joseph Giuliana, for the Accused

HEARD: November 20, 2023, and March 5, 2024

Reasons for Sentence

HIMEL J.

[1] Nahom Mussie entered pleas of guilty to the charges of human trafficking contrary to s. 279.01(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the "Code"), possession of fentanyl for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the "CDSA''), and obstruct justice contrary to s. 139(2) of the Code. He had elected to be tried by a judge sitting alone.

[2] The plea inquiry was conducted pursuant to s. 606 of the Code and Mr. Mussie confirmed that he was entering this plea voluntarily, that he understood that the plea was an admission of the essential elements of the offences, that he was aware that he was giving up his right to have a trial, that he understood the nature and consequences of the plea and that he was aware that this court was not bound by any agreement made between counsel regarding the sentence.

[3] After finding Mr. Mussie guilty of the offences, I ordered that a pre-sentence report be prepared. The report has been received and reviewed by counsel. Counsel have provided their submissions on sentence. The following are my reasons for sentence.

Factual Background

[4] On November 6, 2020, investigators from the York Regional Police were monitoring advertisements on LeoList.com, a platform commonly used to offer sexual services for sale. They located an advertisement that caused them to have concern for the female depicted in the photos. She had obvious injuries that could be seen on the posted photographs and listed her as 18 years old. An undercover officer communicated with the advertisement and set up a meeting at the Pinecrest Motel located at 2641 Highway 7, Vaughan. Late that day, an undercover probe was initiated to check on the well-being of the female. Officers attended the motel and observed a vehicle bearing Ontario licence plate of BWT S411 drop a female off who matched that of the female depicted on the LeoList.com advertisement. The plate BWT S411 belongs to Nahom Mussie.

[5] The female entered the motel room and met with Human Trafficking investigators. She was identified as S.M. She had a significant injury to her leg. She was in pain. Officers offered her support. She did not want to go to the hospital but asked that D.C. Crook return later, pretend to be her aunt and take her to the hospital. Shortly after the officers left the motel, S.M. made contact with D.C. Crook. Officers immediately returned to the motel to check on her well-being. Upon knocking on the motel room door, Nahom Mussie opened the door and told officers that he would be transporting S.M. to the hospital. Officers told S.M. they would meet her at the Humber River Hospital. The officers attempted to follow Nahom Mussie's vehicle but were unable to. The officers attended the hospital but S.M. and Mr. Mussie did not show up. Investigators later learned that S.M. was taken to the Sick Kids Hospital and posed as her younger teenage sister, R.M.

[6] S.M. kept in periodic contact with the York Region officers who referred her to community supports. Investigators continued to monitor her LeoList advertisements (ads were posted offering sexual services repeatedly in November and December) and attempted to make contact. Over the course of the next couple of months, she continued limited contact with the officers.

[7] On Saturday, January 9, 2021, Toronto police officers attended a 911 call for an unknown trouble with a male and female. Attending officers located Nahom Mussie and S.M. outside of Nahom Mussie's vehicle. They were pretending that S.M. was her younger teenage sister, R.M. Mr. Mussie stated that he was R.M. guardian. They told the officer that they had gotten into an argument, but everything was okay. The victim told officers she was suffering from vaginal bleeding, and they were on the way to Mount Sinai Hospital. Officers followed Mr. Mussie and the female to Mount Sinai Hospital to ensure that she would get treatment. While on scene at the hospital, the female required her health card to register for treatment. She went to Mr. Mussie and asked him for the health card. Officers observed Mr. Mussie write the number of the health card down on a piece of paper, but he did not turn over the card to the female. Officers spoke with the female and attempted to get further information from her and offer her assistance, but she refused.

[8] Between January 13 and 14, 2021, Children's Aid Society workers reached out to the female to confirm whether she was S.M. or her younger teenage sister. They were attempting to schedule an in-person meeting to confirm her identity. Leading up to the meeting, it was Nahom Mussie who communicated with the workers to arrange the meeting. The CAS workers went to 14 York Street to meet the victim on January 14. During the meeting, Mr. Mussie did not meet the workers in person although he was in the area of the meeting. During the meeting, CAS workers identified S.M. They had worked with her in the past and noticed a significant decline in her physical appearance and hygiene. She had difficulty standing. They attempted to convince her to go to a shelter for trafficked women, but she would not leave with them. She appeared nervous and agitated.

[9] On January 20, 2021, the Toronto Human Trafficking team conducted mobile surveillance on Nahom Mussie and the victim. They observed them leaving the Woodbine Hotel and Suites. At 1:30 p.m., they parked at the commercial plaza at 1591 Wilson Avenue. When S.M. went into a store by herself, Nahom Mussie was arrested without incident while inside his vehicle. Officers spoke with S.M. She stated that Nahom Mussie had her money and that he made her act like a child.

[10] On January 20 and 21, 2021, Nahom Mussie's vehicle and the hotel room he rented were searched. The following items were seized: 15.72 grams of fentanyl packaged in clear plastic baggies, $1,270 in Canadian cash, a sealed pouch of marijuana, two cell phones, a letter to Daddy and children's objects. The data was extracted from the two cell phones seized. One cell phone contained a conversation from November 2020 to December 2020 with a contact named "Broski". Broski provides advice to Mr. Mussie. Broski instructs Mr. Mussie on how to control S.M.including: whom she can speak to or hang out with, setting a schedule for her, taking away her social media accounts and at times suggesting punishments. In response, Nahom Mussie confirmed that he will punish/beat S.M. The other cell phone seized contains messages from S.M. to Mr. Mussie. In these messages she is asking Mr. Mussie for permission to do things, asking him not to beat her and asking him for drugs. There are multiple audio recordings where S.M. is speaking in a baby voice.

[11] Investigating officers located sexual service ads featuring S.M. The ads were active from November 2, 2020, to January 11, 2021.

[12] On March 25, 2021, S.M. passed away from a fentanyl overdose.

[13] Nahom Mussie was arrested and charged on January 20, 2021, with human trafficking and drug offences. On January 29, 2021, he entered into a recognizance of bail before Justice I. Chandhoke at the Toronto West court located at 2201 Finch Avenue West, Toronto. As part of the bail, certain conditions were imposed including house arrest. D.C. Zeppieri #10334 (Sex Crimes) was advised that Nahom Mussie wanted to have his bail conditions varied and part of the process included providing the court with a document explaining that he had been offered employment. On June 14, 2021, defence counsel provided an employment letter to the court indicating that Mr. Mussie was successful in obtaining employment as a junior accounts payable clerk at HCH Corp. The letter on HCH Corp. letterhead indicated that his salary would be $33,000 per year and benefits. The letter was signed by "Ashley McGlynn" with a phone number of 416- 897-0422.

[14] The employment letter was forwarded to D.C. Zeppieri on June 16, 2021, to ensure the validity of the letter. Investigative checks were conducted, and "Ashley McGlynn" could not be positively identified by police. A website for HCH Corp. was located and two email addresses are provided on the website page. An email was sent to that address; however, no response was received.

[15] On June 22, 2021, Ashley McGlynn was contacted for further information. When the phone number listed was called, a female answered just a normal "hello". D.C. Zeppieri enquired if this was HCH Corp. and Ashley advised that it was and that she was Senior Vice President of Human Resources. She advised that the company is run by Hugh Hagen and his daughter Lauren Hagen. Officers requested that Ashley have Hugh or Lauren contact investigators to confirm the validity of the letter. Ashley replied that Hugh was in the hospital as he was diabetic and had just had his leg amputated and that Lauren was at his bedside.

[16] Shortly thereafter, a call came in from "Lauren Hagen" as displayed on the caller ID on the TPS phone landline. The female on the other end said hi this is Lauren; however, the voice was clearly that of Ashley. When asked about that, the caller said she misspoke, and it was actually Ashley. At this point it was evident that Ashley and Lauren were one and the same person.

[17] Officers were able to contact Hugh Hagen and he advised that he had never heard of Nahom Mussie and that his company was not hiring any new candidates at this time. He further advised that he does not know an Ashley McGlynn and that his daughter Lauren Hagen is not an employee at this company and does not have the authority to hire anyone. He advised that the letter was fake.

[18] Lauren Hagen admitted to police that she forged the employment letter for her drug dealer Nahom Mussie. She explained that from 2019 to 2021 she had a severe drug addiction. Mr. Mussie was one of her dealers. He provided her with fentanyl. Mr. Mussie had asked her to provide an employment letter on her father's company letterhead for the purpose of assisting him with a bail variation. She provided this letter in order to secure fentanyl.

Evidence on the Sentencing Hearing

[19] Crown counsel filed the Agreed Statement of Facts as an exhibit. Ms. McCallum also submitted three Victim Impact Statements from family members of the complainant. They included statements from S.M.'s mother, her sister and her stepsister and they highlight that S.M. was a daughter, a sister, a stepsister, and a mother. The statements describe the grief and pain experienced as a result of S.M.'s death by an overdose that took place months after Mr. Mussie's arrest.

[20] The pre-sentence report prepared by the probation officer was also made an exhibit. It outlines Mr. Mussie's background which is referenced below. The defence submitted the lockdown records from the jail where Mr. Mussie was detained for the period of January 23, 2021, until September 20, 2021, at the Toronto South Detention Centre, a total of 91 days during which time there were 65 lockdowns due to staff shortages. Counsel also filed an affidavit from Mr. Mussie sworn on March 4, 2024.

[21] In the affidavit, Mr. Mussie explained that during lockdowns, he had limited use of showers, telephone, and yard time. Inmates would have to compete for these things, and he found this very stressful. He said he sometimes went without a shower for days. He had difficulty consulting with his lawyer and had difficulty accessing his support network. The ventilation system would go off which made it very uncomfortable.

[22] Copies of Mr. Mussie's release papers were attached to his affidavit. The release dated January 25, 2021, stated that he was released with a surety on a $5,000 recognizance to reside with his surety and not to leave the house except in the presence of his surety and subject to other conditions. That release was changed on January 29, 2021, when he was released on bail with his parents acting as his sureties each in the amount of a $10,000 recognizance and he was required to be under house arrest except for medical emergencies or while in the company of one of his sureties and be subject to other conditions. A further house arrest bail was entered into on September 21, 2021. The house arrest bail was varied on May 30, 2023, which required that Mr. Mussie be on a curfew from 11:00 p.m. until 6:00 a.m. every day. Finally, he was released on bail on September 23, 2023, on terms that required that he remain in his residence except to attend court, to attend work or school as authenticated by the officer in charge and be subject to other conditions.

[23] Mr. Mussie wrote in his affidavit that his time spent on strict bail particularly house arrest was "exceedingly hard for me". He spent 936 days on strict house arrest bail and 117 on a curfew bail. This had a very negative impact on him. He said that his father who was his surety worked long hours almost every day and could rarely accompany him out of the house. He remained at home with his mother, while caring for his brother. He said he became depressed. He watched his mother crying and he said, "it has been excruciating to watch."

[24] The defence filed a psychological assessment report from November and December 2000 concerning Robel Mussie, Mr. Mussie's brother. In this report of the Etobicoke Children's Centre, the author confirmed that Mr. Mussie's brother has impairments in the mild to severe range of a cognitive deficit or developmental challenged. The diagnosis Pervasive Developmental Disorder-Autism was also confirmed. Mr. Mussie, himself, had been seen by the Child Development and Counselling Service at the North York General Hospital on September 10, 1999, and they confirmed that he had speech and language difficulties that required intensive support. Roble Mussie was also seen by that service on March 3, 1999, and they noted a significantly impaired ability to relate to others and issues with cognitive development.

[25] Mr. Mussie filed his curriculum vitae which listed his experience as working in maintenance, basic welding, as a machine operator, an apprentice technician for heating and air conditioning and it outlined his education.

[26] Mr. Mussie spoke at the conclusion of the sentencing hearing and expressed remorse for his actions. He apologized to his family and to the victim's family. He said that he is a family man, has a family who loves him, and he wants to close this chapter in his life and begin a better life.

Positions of the Parties

[27] The Crown and defence provided the court with a joint submission that a sentence of six years' imprisonment should be imposed. They agree that Mr. Mussie has spent a total of 91 days in pre-sentence custody and that he should be credited for the pre-sentence custody at 137 days which is at a rate of 1.5:1 in accordance with R. v. Summers, 2014 SCC 57 and s. 719. (3.1) of the Code. They differ on the amount of credit, however, that Mr. Mussie should receive for time spent on a house arrest bail in accordance with R. v. Downes, 2006 ONCA 3957, 205 C.C.C. (3d) 488 (Ont. C.A.). Crown counsel also seeks an order authorizing the taking of a DNA sample in accordance with s. 487.04 of the Code, an order pursuant to s. 109 prohibiting Mr. Mussie from possessing any weapons for life and an order of forfeiture of the silver Toyota, the drivers licence, a BMO debit card, a RBC Visa card, CIBC banking documents addressed to Laken Burbidge, a broken Apple iPhone, $200., $1,110.00 and $1,270.00 Canadian dollars. The defence does not oppose the ancillary orders.

[28] Ms. McCallum outlined to the court that the range of sentence for the offence of human trafficking is four to eight years. However, there has been an upward trend and in the circumstances of this case, there was exploitation of a young person who had a drug addiction for the offender's personal gain for a period of months. A further offence was committed while he was on bail which is an aggravating factor. A six-year sentence is proportionate to the offence and to the offender. Ms. McCallum submits that six years is at the low end of the range for victimizing a female in the sex trade. Human trafficking is a "silent scourge" involving the exploitation and degradation of a woman. In R. v. Lopez, 2018 ONSC 4749, Campbell J. wrote at para. 52 that the subject is "typically vulnerable" and is "taken advantage of by the pimp." In R. v. Antoine, 2020 ONSC 181, the court quoted from Wein J. in R. v. A.A., [2012] O.J. No. 6256, where she wrote that "Pimps are not harmless ... They provide no beneficial service whatsoever… They enslave the females upon whose earnings they prey… "

[29] In the case of Mr. Mussie, he preyed on an extremely vulnerable person, gave her fentanyl and she later overdosed on it. Her family has provided Victim Impact statements. Mr. Mussie kept S.M. captive to perform sex services. Trafficking was done over a number of months. She was given fentanyl when she needed medical services. She required medical treatment on a wound on her leg and was seeking help for vaginal bleeding. This is a significant aggravating factor.

[30] The decisions of R. v. Tang, 1997 ABCA 174 and R. v. Miller, [1997] O.J. No. 3911 (Gen. Div.) set out factors to assess the spectrum of seriousness of a case. Here, there was complete coercion and control over the family she could see and her access to her community. For example, he was outside watching Children's Aid Society workers and he controlled her social media. He ensured that there was limited contact with friends. There were special vulnerabilities in that the victim was addicted to drugs, had mental health issues, and had young children. There was a degree of planning in that Mr. Mussie was working with another person and had someone else telling him how to control his victim. The degree of control took place over months. There was a degree of violence, and she wrote texts that he would beat her. The extent of the inducement was that he was aware of and used her addiction. Ultimately, she overdosed a few months after he was arrested on these charges.

[31] Ms. McCallum submitted a number of authorities and a sentencing case law chart regarding the range of sentence for the offence of human trafficking. For example, in R. v. Antoine, the court imposed a sentence of 8 years less 3 years for pre-sentence custody, where the offender was found guilty after a trial on charges of human trafficking and had a significant criminal record. In R. v. Alexis-McLymont, 2018 ONSC 1152, the offender was sentenced to 6 years for human trafficking following a trial. He had no criminal record. In R. v. Salmon, 2019 ONSC 1574, the offender was sentenced to 6 years for human trafficking and had a lengthy criminal record with violence; In R. v. Crosdale, 2019 ONCJ 3, the offender was sentenced to 6 years, and he was 33 years old, had no criminal record and took no responsibility for the offences.

[32] As for the obstruct justice charge, he was using the exploitation of another female to get what he wanted. He obtained a letter from Lauren Hagen in June 2021 using fentanyl as his incentive in order to get a variation of his bail.

[33] As for mitigating factors, Mr. Mussie has pleaded guilty and has spared S.M.'s family from having to sit through a trial. There were some significant triable issues and multiple hearsay applications that would have had to be determined. Mr. Mussie has no criminal record.

[34] Crown counsel is not contesting the amount of pre-sentence custody or enhanced credit. However, she disputes the request for additional mitigation for time spent on bail. In R. v. Downes, the court said that calculating credit for a restrictive bail is not a mathematical formula. It is a consideration and can be a mitigating factor: see para. 5. In R. v. Adamson, 2018 ONCA 678, the court wrote in para. 107, that in deciding the amount of credit that should be given for time on restrictive bail conditions, several factors are relevant and include the time period spent on restrictive conditions, the strength of those conditions, the impact on the offender's liberty, and the ability of the offender to carry on normal relationships, employment, and activity.

[35] Here, Mr. Mussie spent a significant amount of time on bail on house arrest. From his affidavit, he has not been able to take steps in his rehabilitation program, education, or employment. However, he did not seek a variation to allow him to add a surety who could have escorted him outside the house to attend employment or an educational program. He had no counselling to gain insight into the exploitative behaviour that he engaged in. During most of the time he was under house arrest, the world was experiencing a COVID-19 pandemic.

[36] Furthermore, Crown counsel argues, the question is how Mr. Mussie has behaved while on bail. The terms have affected his liberty, but he victimized another person in June 2021. The Crown has agreed during the duration of house arrest to lighten the conditions. In September 2023, one of the conditions was that he was not to have a cell phone, but he answered a cell phone while in court. The terms were varied to be strict again. The time spent on bail should be a minor mitigation on the six-year sentence. To give more mitigation, would make the sentence inappropriate: see R. v. C. C., 2021 ONCA 600 at para. 6.

[37] Counsel for the defence, Mr. Giuliana, reiterated that he and the Crown join in their submission to the court that an appropriate sentence is one of six years with ancillary orders for a DNA sample to be taken and a s. 109 order. Defence counsel agrees with Crown counsel about the range of sentence proposed and agrees that this is a just and appropriate sentence in these circumstances.

[38] Mr. Giuliana outlined Nahom Mussie's background to the court and referenced the detailed affidavit of Mr. Mussie that has been filed on his behalf. Mr. Mussie is now 30 years old, lives with his parents and younger brother at 21 Canton Avenue in North York. His mother was involved in a motor vehicle collision in 2007 leaving her with a left arm that is non-functioning. Mr. Mussie took over the role of primary caregiver with his brother who has a neurological and developmental disorder. His brother cannot be left alone as he requires assistance with everything. Mr. Mussie's affidavit is supported by psychological evaluations of his brother confirming his brother's impairment. Mr. Mussie has no criminal record and no outstanding charges. He is involved in coaching and playing soccer. He completed his high school diploma in 2012, attended a course in 2014 in an electrical pre-apprenticeship program. From 2015 to 2018, he attended George Brown College to study Heating and Air-conditioning, but did not finish the program. He would like to return to school to complete it. He has worked as a produce clerk, a HVAC apprentice technician, a machine operator, a welder, a general labourer and a property manager in the past.

[39] Mr. Mussie lived in an area plagued with gang violence and had been carded numerous times and faced discrimination. This is referenced in the pre-sentence report. He has been targeted by police. He has never, however, entered a gang lifestyle. Mr. Mussie has no addiction to drugs, no mental health issues and there was no abuse in his upbringing.

[40] Counsel submits that Mr. Mussie's conduct during the months of these offences was uncharacteristic and demonstrated very bad judgment. His plea of guilty is an expression of remorse. He has saved valuable court time and prevented the family from having to go through a trial. As Crown counsel said, there were triable issues including a hearsay application as the victim is deceased and Charter litigation. Mr. Giuliana submits that Mr. Mussie has good prospects of rehabilitation. Mr. Mussie is fortunate to have a very supportive family.

[41] In terms of time spent in pre-sentence custody, counsel asks the court to award 1.5:1 to the 91 days of pre-sentence custody in accordance with R. v. Summers for a total of 137 days. Counsel then points to the adverse effects of lockdowns in the jail on Mr. Mussie which are outlined in his affidavit. However, counsel is not requesting additional credit for adverse conditions in the jail.

[42] Regarding the time spent on bail, Mr. Giuliana points out that Mr. Mussie was arrested on January 20, 2021, released on bail, and re-arrested on January 25, 2021. He had 5 days on bail. Then he was charged with fail to comply which charge was withdrawn. His surety was his friend, and he was to reside with his friend, but his friend's parents were not in agreement. Then his parents became his sureties on January 29, 2021. He was charged with obstruct justice on June 29, 2021, and arrested. He was released on a house arrest bail on September 21, 2021. The period of time from January 29, 2021, until June 29, 2021, is 152 days of house arrest bail. Following his release again on a house arrest bail on September 21, 2021, the court imposed strict terms that did not permit employment. During this time, he and his mother supervised his brother. He could not leave the house without a surety and says he watched his mother weeping all the time. Mr. Mussie says that he developed some psychological issues as he became despondent and depressed.

[43] On May 25, 2023, Mr. Mussie's bail was varied with the Crown's consent to be a curfew bail. He had spent 612 days on house arrest with no breaches. Then there was an incident involving the cell phone where his bail was revoked and he was released on September 18, 2023, on a house arrest bail with an exception allowing him to attend employment or school. That bail has been in place until today. In an affidavit filed, Mr. Mussie described how he felt being on house arrest bail and then on a curfew and the negative impact it had on him.

[44] Counsel says that he recognizes that there is no mathematical formula to calculate Downes credit but recommends to the court that Mr. Mussie be credited on a 1:3 ratio for the time he has been on a strict house arrest bail of 936 days which would equal 312 days and for the time on a curfew, on a 1:5 basis, he would receive credit of 23 days for 117 days on a curfew. This would equal 335 days of pre-sentence credit for restrictive bail conditions. With the deductions of Summers and Downes credit, he submits that the sentence of six years (2,190 days) should be reduced by 472 days leaving a balance of 1,718 days of imprisonment to be served.

Analysis and the Law

[45] Before turning to the specific circumstances of this case, I first consider the general sentencing principles which apply. The fundamental purpose of sentencing is set out in s. 718 of the Criminal Code. It is to ensure respect for the law and to promote a just, peaceful, and safe society. The imposition of just sanctions requires that I consider the sentencing objectives referred to in this section. They are denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separating offenders from society where necessary, rehabilitation of offenders, providing reparation for harm done to victims or to the community, promoting a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

[46] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. When imposing sentence, I am to consider certain factors which may increase or reduce the sentence because of aggravating or mitigating circumstances. The sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh. The offender should not be deprived of liberty if less restrictive sanctions are appropriate and all available sanctions other than imprisonment that are reasonable in the circumstances, should be considered for all offenders, particularly Aboriginal offenders.

[47] I now turn to the relevant jurisprudence on sentencing applicable to the offences in this case. The charge of human trafficking contrary to s. 279.01 of the Code has a four-year mandatory minimum sentence. This has been challenged in several cases and followed in R. v. McEwan, 2023 ONSC 1608, where Di Luca J. held that the mandatory minimum sentence has been declared invalid in cases such as R. v. Jean, 2020 ONSC 624. The constitutionality of the mandatory minimum is moot where the sentence sought exceeds four years in any event. Di Luca J. sentenced the offender to a global sentence of five years with five years for the human trafficking count where the offender was 34 years old, had a criminal record for unrelated offences and had been found guilty following a trial.

[48] According to the jurisprudence, the sentencing range for human trafficking is four to eight years. In R. v. Lopez, at para. 53, K. Campbell J. wrote that in cases where an accused has coerced a woman into becoming or remaining a prostitute and exercised a significant degree of control over her activities, a sentence of four or five years is typically imposed. He noted that general deterrence and specific deterrence are the paramount considerations. As referenced above, in R. v. Tang, 1997 ABCA 174 and R. v. Miller, [1997] O.J. No. 3911 (Gen. Div.), the courts outlined some factors that offer guidance when assessing where the case lies in terms of the seriousness of the circumstances. The Tang/Miller factors focus on the amount of coercion imposed by the pimp, any special vulnerability of the person, the duration of the pimp's exploitative conduct, whether there was violence involved, whether there were inducements such as drugs or alcohol employed by the pimp, the effect on the person and the attempts to prevent the person from leaving his employ.

[49] In R. v. Burton, 2023 ONCA 44, the Ontario Court of Appeal upheld a global sentence of 10.5 years with 8.5 years on the human trafficking counts where there was a trial, and the accused had an extensive criminal record. In R. v. Jordan, 2019 ONCA 607, the Court of Appeal upheld a global sentence of nine years with six years for the human trafficking offence where the accused had a criminal record. In the case of R. v. Antoine, the accused trafficked the victim in the sex trade for months in 2015 and 2016 and another person in 2017 for a few days. He supplied them with drugs while they worked for him. He received a sentence of 8.5 years for human trafficking following a trial. In R. v. Alexis-McLymont, 2018 ONSC 1152, the accused recruited a 15-year-old who was addicted to crystal meth to work in the sex trade, kept her captive in a hotel and earned money from her services. He was sentenced to six years for human trafficking after a trial. He had no prior criminal record. In R. v. Gordon, 2023 ONSC 1036, Goldstein J. sentenced the offender who was 26 years old and had a significant criminal record to a global sentence of 7 years with 6 years on the human trafficking count following a guilty plea.

[50] In cases involving persons convicted of trafficking and possession for the purposes of trafficking in controlled substances, the courts have ruled that deterrence and the protection of the public are of paramount consideration. The nature and quantity of the drug are relevant to the issue of sentencing. Whether there is a significant element of commercialism, the role of the offender and the circumstances of the offender are all relevant considerations. In passing sentence, the court may consider the well-being of younger but presently uncommitted potential users of drugs and in so doing, impose a sentence which emphasizes the protection of the public. The court will also look to the circumstances of the offender including whether the offender has an addiction to drugs.

[51] Cases involving possession for the purpose of trafficking where the drug is fentanyl and the quantity is significant support that the range of sentence is between 6 and 9.5 years with some exceptions: see R. v. Sidhu, 2019 ONCA 880; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, R. v. Boose, 2023 ONCA 493; R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628 and R. v. Smith, 2023 ONCA 500. While the Supreme Court decision in R. v. Parranto, 2021 SCC 46, 463 D.L.R. (4th) 389, dealt with large scale fentanyl trafficking and the case at bar does not involve that, the comments of Justice Moldaver are relevant regarding the dangers posed by trafficking in hard drugs including direct and indirect harms to society and the specific dangers posed by large scale Fentanyl trafficking given the potency of the drug and the risk of overdose and death. Thus, while the range of sentence discussed by the Supreme Court in Parranto is not applicable to the case at bar, the comments regarding the consequences of fentanyl trafficking and the dangers of this drug are pertinent.

[52] With reference to the count of obstruct justice, this offence involves a wilful act of attempting to obstruct, pervert or defeat the course of justice in a judicial proceeding and where the Crown elects to proceed by indictment, the maximum sentence is 10 years. It is an offence against the administration of justice and the objectives of deterrence and denunciation are paramount principles of sentencing for such offences.

Decision

[53] Sentencing involves the exercise of discretion and requires the sentencing judge to consider the individual circumstances of the offender, the circumstances of the offence and the need for the sentence to meet the sentencing objectives outlined by Parliament. The goal of sentencing is to impose a just and fit sentence, responsive to the facts of the individual offender and the particular circumstances of the commission of the offence: see R. v. Wust, 2000 SCC 18, [2000] 1 S.C.R. 455 at para. 44.

[54] In considering both the circumstances of the offences and the circumstances of this offender, I consider the relevant aggravating and mitigating circumstances. I must also consider that like offenders should be treated alike. I consider the following circumstances to be relevant in the case of Mr. Mussie.

[55] Mr. Mussie is 30 years of age and was born on March 20, 1994. He is a Canadian citizen. He was born and raised in Toronto. His parents were born in Eritrea and came to Canada as refugees in the late 1980's due to the war and because conditions were unsafe. They are now Canadian citizens. Mr. Mussie's mother worked briefly and then left work to care for his brother who has neurological and developmental disorders. He was diagnosed with autism spectrum disorder at a young age. He is non-verbal and unable to cook, bathe or clean after himself and can sometimes be violent. Mr. Mussie helped his mother with looking after his brother who was also diagnosed with Catatonia and obsessive-compulsive disorder. Mr. Mussie's father was a taxi driver, and the parents remain married. Mr. Mussie confirmed that he was not a victim or witness to any physical or sexual abuse in the home and no child protection agencies were involved during his childhood.

[56] Mr. Mussie grew up in a number of neighbourhoods in Toronto: at Keele and Eglinton, at Black Creek and Trethewey and at Vaughan and Oakwood. In grade 4, his parents bought a house in the Jane and Wilson area and the family has lived there since. He said that he experienced people getting beat up, robbed, dealing drugs and that there was poverty, a significant police presence and gang violence. He lost friends and acquaintances to gun violence. Mr. Mussie said that he was exposed to a large police presence in all of his neighbourhoods, that he and his peers were often stopped and carded, and he believes that they were stopped because police believed that, as Black youth, they were involved in criminal activity.

[57] Mr. Mussie denied gang involvement to the probation officer who prepared the pre-sentence report and said that he kept busy with sports, his Eritrean community, and his church. His involvement in the Eritrean community and in sports was confirmed by a cousin and a friend of Mr. Mussie. Mr. Mussie completed his high school education. He had been in a special education classroom while in elementary school following an assessment that found that he met the criteria for a diagnosis of a developmental language disorder. He was to have intensive speech and language support. After high school, Mr. Mussie went back to school to upgrade some of his courses. He attended a construction and maintenance electrician pre-apprenticeship program in Toronto from 2013 to 2014, then a course in heating and air conditioning from 2015 to 2018. He provided a copy of his diploma to the probation officer to confirm this. He also purchased an investment property with his father, and he has been maintaining and renting out this property. Mr. Mussie had minimal employment since 2019 due to his responsibilities in caring for his brother. He plans to return to provide support to his brother but also wants to get involved in a trade and manage his rental property. Mr. Mussie has no issues with alcohol or drugs. He does not have any mental health or physical health concerns but says he suffers from anxiety concerning his brother's care. He has never attended counselling.

[58] The probation officer asked Mr. Mussie about the time when he became involved in these offences. He said that they occurred over three months when he met the victim at a store. She got into a disagreement with a store clerk regarding paying for the bill and he offered to help her. He minimized his actions to the probation officer and did not give a clear response as to how these events occurred and says he was not aware of the severity of his involvement. However, he now takes responsibility for his actions and the harm he has caused.

[59] Mr. Mussie has no previous criminal record. However, he has been exposed to much violence and criminal activity in the neighbourhoods where he has lived. In the case of R. v. Morris, 2021 ONCA 680 at paras. 79 and 81, the Ontario Court of Appeal highlighted the principles of denunciation, deterrence, protection of society and rehabilitation and the role of mitigating personal circumstances and the offender's prospects for rehabilitation. The court took into account the matter of anti-Black racism as a relevant consideration. The court also highlighted the considerable discretion given to sentencing judges to decide how best to blend the various legitimate objectives of sentencing. However, the Court of Appeal also explained in Morris at para. 97 that there must be some connection between overt and systemic racism and the circumstances or events that explain or mitigate the conduct in issue. I acknowledge Mr. Mussie's past hardship and his personal history including the factor of anti-Black racism but cannot see the connection of those experiences to the circumstances in the case at bar in order to constitute a mitigating factor.

[60] As outlined above, it is a principle of sentencing that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see 718.2(d)) and that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, particularly Aboriginal offenders (s. 718.2(e)).

[61] I now turn to the circumstances of the offences. The offence of human trafficking was described by my colleague Campbell J. in R. v. Lopez at para. 52 as "exploitive, coercive and controlling actions." In the case before me, Mr. Mussie exercised control over S.M. for a period of three months. He exploited her as a sex worker when she was addicted to drugs and was in a vulnerable state. She required medical attention which was not provided. He controlled her contact with family and friends. He was in possession of fentanyl for the purpose of trafficking, a deadly and addictive drug which he used to manipulate his victim. Finally, he exploited another drug user to obtain a fraudulent letter to support a change in his terms of judicial interim release. The paramount considerations for each of these offences are deterrence and denunciation.

[62] I have considered the mitigating and aggravating factors which I have outlined above. I have considered the positions of counsel and the jurisprudence they have filed. I have considered the need for denunciation and deterrence in this case. However, I have also considered the objective of rehabilitation of the offender. In reaching this sentence I am mindful that Mr. Mussie has been on periods of release to reside with his sureties with house arrest. These restrictive terms that have been in place for the last three years are a factor I consider in fashioning the appropriate sentence as is discussed in Downes. I also consider that Mr. Mussie is a racialized person which can be a relevant mitigating factor in accordance with R. v. Morris but in this case, his personal hardship is not connected to the offences for which he has been convicted.

[63] Mr. Mussie was charged and arrested on these offences on January 20, 2021. He was detained for five days before he was released on a strict house arrest bail on January 25, 2021. He was to live with his friend who was his surety. However, his friend's parents would not allow him to live there, and he says that before he could apply to vary his bail, he was charged on January 27, 2021, with fail to comply. I understand that this charge was later withdrawn by the Crown. He spent a further two days in jail. He was released on a new global bail on January 29, 2021, with his parents named as his sureties and a requirement that he reside with his parents under strict house arrest conditions.

[64] Mr. Mussie remained on the house arrest bail from January 29, 2021, until June 29, 2021, which was a total of 152 days. On June 29, 2021, he was charged with obstruct justice and remained in custody until September 21, 2021. This was a period of 84 days. From September 21, 2021, until May 30, 2023, Mr. Mussie was on a strict house arrest bail, a total of 612 days. During this time, he was required to remain in his residence and could only leave for medical emergencies or to travel to court or meet with his lawyer. On May 30, 2023, the house arrest bail was varied to permit a curfew from 11:00 p.m. to 6:00 a.m. every day.

[65] On September 20, 2023, Mr. Mussie had his curfew bail revoked and he entered into a strict house arrest bail which does permit him to leave the house to attend court, to travel to and from work or school or when he is in the presence of either of his sureties. He has been on that strict bail until today's date.

[66] Mr. Mussie spent a total of 91 days at the Toronto South Detention Centre with 65 days of partial lockdowns, a total of 47% of the time for the period of January 23, 2021, until September 20, 2021. In his affidavit filed, Mr. Mussie outlined the impact of the lockdowns on him physically and emotionally. In the circumstances, I credit Mr. Mussie with having served 137 days of pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers, 2014 SCC 57 which at 1.5:1 would equal 137 days. In R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344, the court held that a sentencing judge may give credit for particularly harsh conditions of pre-sentence custody beyond the 1.5:1 set out in s. 719(3.1) of the Code. In Marshall, Justice Doherty wrote at para. 52:

Because the "Duncan" credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.

[67] I consider that Mr. Mussie spent some pre-trial custody in difficult conditions during the COVID-19 pandemic and living through the precautions taken during this period of time which also involved staff shortages. There is considerable jurisprudence on the impact of harsh conditions of pre-sentence custody and courts have expressed concern about the number of lockdown days and the conditions of incarceration at the Toronto South Detention Centre in particular: see R. v. Persad, 2020 ONSC 188; R. v. Spicher, 2020 ONCJ 340 at paras. 59-68; R. v. Jama, 2021 ONSC 4871 at paras. 51, 53, 55. See also: R. v. Steckley, 2020 ONSC 3410 and R. v. Baldwin, 2021 ONSC 7025.

[68] In light of the evidence filed of lockdowns during his incarceration and the effect of such conditions on Mr. Mussie, I credit him with an additional 33 days of pre-sentence custody for the 65 days of lockdowns which equals 170 days of pre-sentence custody credit.

[69] As for credit in accordance with Downes, I apply the factors discussed in that case as well as the considerations discussed in Adamson and in R. v. Joseph, 2020 ONCA 733, and I exercise my discretion and determine that some credit is in order. I also recognize that "bail is not jail" as quoted from R. v. Ijam, 2007 ONCA 597 at para. 36. In R. v. Joseph, at para. 108, the court wrote:

Although it is not uncommon to speak of providing "credit" for stringent bail conditions, "pre-trial bail is conceptually a mitigating factor" in assessing a fit sentence: R. v. Yue (2007), 2007 ONCA 598, 226 C.C.C. (3d) 349 (Ont. C.A.). Mitigation is given because stringent bail conditions can be punitive and therefore "akin" to custody: Downes, at para. 29.

[70] The court explained in R. v. C.C. at para. 5, that some judges choose to achieve mitigation by granting a "Downes credit" that is set off against the sentence that would otherwise be imposed while other judges choose to factor the punitive impact of the bail conditions on the offender into the overall determination of what is a fit sentence and that neither approach is an error.

[71] I certainly accept that the terms of release over the previous three years which included house arrest for a significant period of time have been very restrictive of Mr. Mussie's liberty and have affected his emotional health and his ability to carry on normal relationships, employment and activities. However, I am also mindful of his actions on June 14, 2021, when he provided his lawyer with a false document which was a fraudulent employment letter obtained through someone, he was exploiting who had a drug addiction and he had provided her with fentanyl. Although he was prosecuted and is now sentenced in a global manner for that offence, I still consider it a factor that he was involved in such misconduct while he was on bail for the human trafficking offence. I am also mindful that he was in breach of a term of his release when he was in possession of a cell phone in the courtroom when he appeared before Justice Dineen. As a result, the bail conditions were varied again to be made more stringent. These misconducts do not bode well in terms of Mr. Mussie commencing the road to rehabilitation. I further consider what the court said in R. v. C.C. and that the totality principle must also be considered in imposing a fit sentence. In all the circumstances, I give two months Downes credit for the time spent on house arrest bail recognizing that to grant any further credit would make the overall sentence inappropriate.

[72] In summary, I have considered the aggravating and mitigating circumstances in this case. I have considered the circumstances of the offender and the circumstances of the offences. I have considered the joint submission made to me by counsel. Joint submissions play a vital role in contributing to the administration of justice and as Justice Moldaver wrote in R. v. Anthony Cook, 2016 SCC 43, 2 S.C.R. 204, "Without them, our justice system would be brought to its knees and eventually collapse under its own weight.: at para. 41. In my view, this joint submission is made by experienced counsel who have arrived at a resolution which is fair and consistent with the public interest. I accede to the joint submission that the appropriate global sentence in this case is one of six years.

[73] Accordingly, I sentence Mr. Mussie as follows: for the offence of human trafficking contrary to s. 279.01(1) of the Criminal Code, I sentence him to 6 years imprisonment; for the offence of possession of a schedule I substance for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, I sentence five years imprisonment to be served concurrent to the sentence for human trafficking; for the offence of obstruct justice contrary to s. 139(2) of the Code, I sentence him to one year of imprisonment to be served concurrent to the sentence for human trafficking. The global sentence is one of six years.

[74] Mr. Mussie is credited with having served 91 days of pre-sentence custody which at 1.5:1 equals 137 days. For the harsh conditions of pre-sentence custody during the time of the pandemic I credit him with an additional 33 days in accordance with R. v. Duncan, 2016 ONCA 754 and R. v. Marshall, 2021 ONCA 344. For the time spent on restrictive bail conditions over approximately three years, I credit him with two months. The total time remaining to be served is 1,960 days or 5 years and 4 1/2 months imprisonment to be served.

[75] I further make an order under s. 109 prohibiting Mr. Mussie from possessing any weapon as defined by the Criminal Code for life. I also order that Mr. Mussie provide a sample of his DNA pursuant to s. 487.04 of the Criminal Code. Finally, there will be an order of forfeiture of the monies seized, the cell phone and various documents and other items located during the execution of the search warrant.

Himel J.

Released: May 31, 2024

COURT FILE NO.: CR-21-50000469-0000 DATE: 20240531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING

- and-

NAHOM MUSSIE

REASONS FOR SENTENCE Himel J. Released: May 31, 2024